A New Imperative for Schools: Protecting Vulnerable Kids as Masks Disappear

As the COVID-19 pandemic enters its third year, school and district leaders are facing a fresh set of challenges with mask mandates evaporating across the country. Now they must figure out other ways to protect medically vulnerable students, a high-wire act that requires great delicacy and carries a huge price tag—legally and medically—if they err.

Only two weeks after the U.S. Centers for Disease Control and Prevention relaxed its school masking rules, and as nearly every state is dropping its own face-covering requirements, many school districts are offering children two options: attend in person and mask if you wish, or learn virtually. Fewer and fewer schools are requiring others to mask to protect medically vulnerable children.

“Most districts right now seem to be saying, ‘We’re free of the onus of masking, and good luck to anybody who still needs it,’” said Ken Behrend, an attorney who represents several Pennsylvania families that successfully sued their schools for universal masking rules to protect their students, who have medical conditions that boost their risk of complications from COVID-19.

Legal and medical experts caution mask-optional districts against relying too heavily on virtual learning or voluntary masking as the only protections for students whose disabilities or medical conditions make COVID-19 a particularly threatening disease. They note that many children can’t wear masks, or produce insufficient antibodies from vaccines, because of their medical conditions. Additionally, a long list of health challenges subject many people to increased risks from COVID-19.

Federal laws such as the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act require districts to provide “reasonable accommodations” and a “free and appropriate public education” for students with a wide range of disabilities. Legal experts said that districts may need to consider a suite of protections for such students, including, in some cases, requiring some people to mask around them.

“It can’t just be, ‘School is back to normal, and if that doesn’t work for these kids, they can learn at home,’” said Dr. Sara Bode, a pediatrician who is the chair-elect of the American Academy of Pediatrics’ Council on School Health.

“It has to be, ‘I have kids at higher risk, so what additional mitigation measures can I use to ensure they’re safe?’ ”

Using the now-familiar list of standard mitigation measures—vaccination, frequent COVID testing, social distancing, hand-washing and improving air quality—can also play a part in keeping at-risk students safe, she said. Bode encouraged district and school leaders to reach out to families, asking if there are any health conditions that warrant additional safety measures. Conversations can then begin with them and their doctors to find solutions, Bode said.

That outreach should go beyond a school’s roster of students who have individualized education programs under the IDEA or Section 504, she said. Many additional children might need safety plans because they have conditions such as serious asthma, or they have at-risk families members at home.

For school districts, these carefully customized plans pose yet another challenge in a two-year period that’s been tougher than any in recent memory.

‘Hoping we’re on the right side of the law’

Ken Greene, the assistant superintendent for student services in the Barrow County school district, in Winder, Ga., said his district isn’t offering virtual learning to most students, so he’s working on in-person solutions for at-risk students.

He’s updating the district’s inventory of children with disabilities and other medical conditions that might put them at risk, and working with families to come up with solutions. His district is mask-optional, but Greene said he’d be willing to consider requiring small groups of staff or students to mask around a particularly vulnerable colleague or peer.

“We’re trying to be sensitive to students and staff and meet needs in ways that seem reasonable, and hoping we’re on the right side of the law,” he said.

In the Willis Independent school district, 50 miles north of Houston, Superintendent Tim Harkrider said he doesn’t see required masking as an option, even if it’s applied to just a few people. Texas doesn’t allow it—although an imminent court ruling could change that—and his school community wouldn’t tolerate it, he said.

“What it boils down to,” he said, “is what can you offer a child with a disability in a regular setting without infringing on other people’s desire not to wear masks? It’s a gray area that sits there, and no one wants to touch it.”

Lawyers who often represent school districts, and those who specialize in the rights of students with disabilities, caution that drawing a clear line in the sand over limited masking could backfire on districts.

Mark Bresee, whose California law firm represents 500 school districts in the state, including San Diego Unified in its bid to defend its vaccine requirement, said districts likely have “a very high bar to clear” if they argue that medically at-risk students have only two options: schools that are mask-optional or virtual.

There’s precedent for protections that are shouldered by a group, not just an at-risk individual, Bresee said. If a child has a peanut allergy, “you can’t just say, ‘You assume the risk, no one has to modify their behavior in any way to aid in protecting you,’ ” he said.

But there’s also a limit to what parents can demand, and districts have the right to claim that some accommodations pose an undue hardship, Bresee said. Federal law envisions individualized solutions, reached through compromise, he said.

Adam Wasserman, a California lawyer specializing in disability-rights cases, advised districts to think carefully about discrimination claims that could arise from making virtual learning the only option to mask-optional in-person schooling.

“We have to be careful when we start removing clusters of students and putting them in their own spaces,” he said. “We know separate is not equal.”

In Wasserman’s view, reasonable accommodations could include districts enhancing online instruction with 1-to-1 aides. But they should focus on keeping children in classrooms, using mitigation strategies like improved air quality and hand-washing to boost safety. Requiring others to mask around certain students, he said, “could also be considered a reasonable accommodation.”

Districts edge onto difficult legal terrain

Behrend said districts must recognize that the CDC’s guidance doesn’t align perfectly with federal laws’ required protections for medically at-risk students.

“The idea that it’s just up to the kid and their parents to make sure a kid masks, that falls in line with the new CDC guidance, but it ignores ADA [Americans with Disabilities Act] requirements,” he said. “This could get districts into trouble if they’re not mindful of it.”

Even with a flurry of lawsuits over masking and vaccine requirements, the law is not entirely clear yet on the question of just what districts must do to protect vulnerable students if masks are optional, lawyers told EdWeek.

They noted the differing messages emanating from two closely-watched cases.

In Texas, a three-judge panel of the 5th U.S. Circuit Court of Appeals dissolved a lower-court order halting Gov. Greg Abbott’s ban on local mask mandates. In its unanimous December ruling, the panel suggested that students with disabilities could find sufficient protection in measures such as good ventilation, voluntary masking, distancing, plexiglass dividers, and vaccinations.

But the 8th U.S. Circuit Court of Appeals said, in an Iowa case, that parents would probably win on their argument that mask requirements are a reasonable accommodation for students with disabilities. Gov. Kim Reynolds’ ban on mask mandates, it said, shouldn’t be interpreted to mean that masks can’t be required when they’re needed to protect such students.